1995 (10) TMI 224 - SC - Indian Laws

Supreme Court grants partial appeal, recognizing long possession over land. Appellants designated as Protected Tenants.

DEVA RAM Versus ISHWAR CHAND

The Supreme Court partially allowed the appeal, recognizing the long possession of the appellants over the land. It directed that a compact area of 10 ... - Issues Involved:1. Applicability of Order II Rule 2 of the Civil Procedure Code.2. Status of the appellants as tenants under the respondents.3. Applicability of the rule of res judicata.4. Adverse findings and their effect on subsequent suits.Summary:1. Applicability of Order II Rule 2 of the Civil Procedure Code:The appellants contended that the suit was barred by Order II Rule 2 of the Civil Procedure Code. The Supreme Court examined the provisions of Order II Rule 2, which mandates that a plaintiff must include the whole of the claim in one suit to avoid vexing the defendant twice for the same cause. The Court found that the previous suit was for the recovery of a sum of Rs. 6,300/- as the sale price of the land, based on an agreement for sale, whereas the subsequent suit was for possession based on the title. Since the causes of action were different, the rule did not apply. The District Judge and the High Court were correct in rejecting the plea regarding Order II Rule 2.2. Status of the appellants as tenants under the respondents:The appellants argued that they were tenants under the respondents since Samvat 2005, as found by the Trial Court in the previous suit. However, the lower appellate court had reversed this finding. The Supreme Court noted that the appellants did not plead this defense in the subsequent suit, nor was an issue framed regarding their tenancy status. Therefore, the finding of the Trial Court in the previous suit could not be treated as res judicata.3. Applicability of the rule of res judicata:The rule of res judicata, u/s 11 of the Civil Procedure Code, bars the trial of a suit or issue that has been directly and substantially in issue in a former suit between the same parties and has been finally decided by a competent court. The Supreme Court observed that the appellants did not plead res judicata in their written statement in the subsequent suit. The issues and causes of action in the two suits were different, and thus, the rule of res judicata did not apply.4. Adverse findings and their effect on subsequent suits:The appellants contended that the adverse finding on their tenancy status in the previous suit should still hold. The Supreme Court clarified that an appeal does not lie against mere findings unless they amount to a decree or order. Since the appellants did not challenge the appellate court's reversal of the finding on their tenancy status, the original finding by the Trial Court could not be revived or treated as res judicata.Conclusion:The Supreme Court partly allowed the appeal, noting the long possession of the appellants over the land. It directed that a compact area of 10 bighas be left with the appellants as Protected Tenants, and the decree for possession be executable only for the remaining 24.9 bighas. The Tehsildar was instructed to partition the land accordingly, and the appellants were to surrender the area falling to the respondents within one month of the Tehsildar's order. The judgment of the lower courts, including the High Court, was modified to this extent. The appeal was partly allowed without any order as to costs.